Friday, October 27, 2006

Article Tools

I was busy doing nothing when I was interrupted Thursday evening
by a reporter from UCSB’s Daily Nexus, informing me that
The Independent had just been sued in federal court by
News-Press owner Wendy P. McCaw.

In her lawsuit, McCaw alleges that The Independent had
infringed upon her copyright, ripped off her trade secrets, engaged
in “intentional and negligent interference with her prospective
economic advantage and contract.” Translated into the English
language, McCaw claims that two news articles written by
News-Press reporters had somehow been leaked to me and
that I was in their possession illegally. Secondly, she was upset
that I had posted one of the articles on the Independent’s
website (Independent.com) in its entirety without the
News-Press’ consent. And somehow because of this, her
lawsuit charged, McCaw and her newspaper have suffered economic
damages.

I have to admit that I was initially
flabbergasted. For one newspaper to sue another because it
had received leaked documents left me speechless. It’s a
newspaper’s job to release information that those in power wish to
suppress. It’s what justifies our existence. Leaked
documents play a huge part in that mission. But I shouldn’t have
been surprised. McCaw’s hostility to what journalists do and what
journalism is all about is intuitively obvious to anyone literate
enough to parse the syllables of a Family Circus comic
strip.

Not having seen the actual text of the lawsuit, I can’t comment
with any specificity on what promises to be a violently contorted
and delusional document. But being the man in the middle on this, I
can speak to certain facts of the case.

First, I was in possession of just one document, not
two. The News-Press has been apprised of this
fact for eight weeks now. But their decision to make legal claims
contrary to the known facts is nothing new for McCaw and
associates. Secondly, to the extent that Ms. McCaw has suffered any
damage, either to her reputation or to her pocket book, has nothing
to do with anything The Independent posted on its website.
Any and all damages Ms. McCaw has endured are strictly at
her own hand. If she, her friends, or her legal advisors
had any concern about Ms. McCaw’s reputation or the paper’s
financial well-being, they would have filed a restraining order
against Ms. McCaw, barring her any contact or communication with
the newspaper she owns, let alone allowing her to exert any direct
control or influence in its day-to-day operation.

Here are the facts: In the middle of the summer, executive
editor Jerry Roberts and several other high
ranking editors of the News-Press resigned, charging McCaw
for several breaches of journalistic ethics. It was a dramatic
moment, and an intensely emotional one. It also happened to have
huge implications for anyone in the community that relied upon the
daily paper for news, views, and information. Those factors
combined made the mass resignations the biggest story in town.

Accordingly, News-Press reporter Scott Hadly—who later resigned—took
notes on what he saw and heard. He sought to interview the
principals afterwards. In some instances he succeeded; in others he
did not. Hadly explained later that he recognized that this was a
major news event. He also said that for the
News-Press to retain a glimmer of journalistic
credibility—which was the issue promoting the resignations in the
first place—he thought the newspaper should cover what was
happening within its four walls. So, as a news reporter, he
produced a news article. That story never saw the light of
day at the News-Press.

Instead, McCaw had Travis Armstrong—the acting publisher
while she and Arthur Von Weisenberger, her fiancée
and co-publisher, were whiling away the hours on her yacht
in the south of France—write front page “letters to our
readers.” In one, Armstrong blithely dismissed the turmoil within
the News-Press as an unfortunate family squabble, and
pledged the paper’s continued dedication to journalistic
excellence. Subsequently, McCaw herself wrote a note to
News-Press readers, blaming the uproar on a few
disgruntled reporters and editors upset that they would no longer
be allowed to use the news pages as a vehicle for their personal
political agendas. In the meantime, Hadly’s article never
ran. And no other news article exploring the nature of the
dispute roiling the News-Press ever ran either.

For those concerned that McCaw was doctoring the news to fit her
own personal agenda of comforting herself and her rich and famous
pals, the fate of Hadly’s article was troubling in the extreme. In
fact, the decision to spike Hadly’s piece constituted Exhibit A in
the festering public indictment then accumulating against
McCaw.

In an online posting under The Poodle byline, I reflected on the Hadly
piece and its significance. I made many of the same points I just
have. I also included a link allowing readers to read Haldy’s
piece—which had been leaked to me—in its entirety. That way, I
figured, the readers could better judge for themselves what was
happening.

A few days later, we received a cease-and-desist
letter from McCaw’s attorney David Millstein, notifying us that the
article we posted was the copyrighted property of the
News-Press, that we had come into its possession without
News-Press consent, and that we had posted it likewise.
(Click here for more on that.)

Initially, we had no interest in complying. The letter
link provided what we thought was documentary evidence underscoring
our criticism of the News-Press’ bad faith attitude
towards the community, its workers, and the practice of
journalism. But after consulting with not one, but two
attorneys, we were told our position was not legally defensible.
Based on that, we withdrew the link. But we maintained the article
and have never backed away from the criticism it underscored.

That, we figured, was the end of it. But the sad tale of the
News-Press has played out to the tune of countless legal
threats. The clear intent is to silence and intimidate
people with information from speaking critically of McCaw and her
minions.

For those who can remember, contrast this with the behavior of
former publisher B. Dale Davis, whose knee-jerk
pro-business and pro-oil sympathies alienated and angered large
segments of the News-Press readership back in the late
'80s. However wed to his opinions he was, Davis was astute enough
to recognize that a newspaper without readers is a losing
proposition. David responded by conducting a series of
town hall forums, inviting readers to show up and speak their
minds. More often than not, it was a painful exchange for Davis.
But I was impressed that he did it. Under the current regime,
efforts by community activists, readers, and workers have all been
rudely rebuffed.

To some extent, the legal threats have worked. They worked well
enough to scare sources who I thought might actually possess the
second document I’m accused of illegally possessing. This was an
unpublished news article written by Vladimir Kogan
detailing how McCaw had filed a $500,000 claim against former
editor Jerry Roberts. But because the information was not publicly
available in courthouse legal documents, there was a question how
Kogan got that information. Roberts has claimed that Kogan got the
information from McCaw’s attorney David Millstein, thus violating
the spirit, if not the letter, of the arbitration agreement binding
Roberts and McCaw. I never got a copy of the Kogan article,
and have made this known. That hasn’t stopped McCaw from
asserting otherwise in her lawsuit.

The legal threats were not enough, however, to stop
newsroom workers from successfully voting to be represented by the
Teamsters in accordance with the National Labor Relations
Act. Throughout that campaign, McCaw filed at least two
unfair labor practice complaints against the union, alleging
threatening and coercive campaign tactics. In instances, the
NLRBoard—hardly sympathetic to the union cause under the Bush
administration—investigated the allegations and found there
was nothing to substantiate them. Nothing. And that’s
exactly what the federal courts will conclude if and when they
investigate McCaw’s claim against The Independent.

To the extent that we posted trademarked material on our website
without the News-Press consent, they suffered no damages
from it. But they have suffered enormously by McCaw’s adamant
refusal to address the News-Press’ on-going ethics
dispute. Readers by the thousands have not cancelled their
subscriptions by anything we wrote. They cancelled their
subscriptions because of what the News-Press will not
write.

If Wendy were to sue herself, I think she’d find that she has a
really good case. And while she may not be a billionaire anymore, I
heard a rumor that she still has lots of money.